U.K.’s ‘Sullivan’ gives press more leeway to report

Tuesday, October 17, 2006

In 1964, freedom of the press was in serious jeopardy in the United States.
Juries in the deep South had either already awarded or were poised to award
unprecedented libel judgments in favor of public officials and against major
news organizations, most prominently The New York Times, for reporting on
the struggle for civil rights then enveloping the region. Something had to be

Something was done — something major. The Supreme Court stepped in and, in
its decision in New
York Times Co. v. Sullivan
(1964), reversed one such judgment and boldly
trumpeted “the central meaning of the First Amendment” — i.e., that the freedom
of the press, above everything else, protects the right of the citizens in a
democracy to engage in “uninhibited, robust and wide-open debate” about the
important issues of the day. It was sweet music indeed.

Changing the old common law
At common law, it will be remembered, a
libel plaintiff need only prove the publication of a defamatory statement “of
and concerning” him — i.e., one that would reflect badly on his reputation. If
he made that showing, the burden shifted to the defendant to “justify” the
publication by pleading and proving that it was true or to excuse it by pleading
and proving that it was made on a “privileged” occasion — an elaborate series of
exceptions to the general rule of strict liability that in most circumstances
did not apply to press reports published to a mass audience. In Sullivan,
the Alabama courts applied these rules faithfully and a jury found the
Times liable for publishing an advertisement that criticized public
officials for allegedly violating the rights of protesters such as Dr. Martin
Luther King Jr.

Under the rules first articulated in Sullivan in the name of the First
Amendment, in contrast, public officials and public figures who bring defamation
actions against publications that address matters of public concern must not
only carry the burden of proving that a false and defamatory statement of fact
has been published about them, they must also demonstrate by clear and
convincing evidence that the publication was made with “actual malice” — i.e.,
with knowledge of its falsity or in “reckless disregard” of the truth.  If
the plaintiff is not a public official or figure, she must still demonstrate
that the defendant was at fault in publishing a defamatory falsehood —
abrogating the common law rule of strict liability whenever the publication at
issue addresses a matter of public interest.

American publishers in British courts
All of this brings us to 2006
and the United Kingdom. The law of defamation in the U.K. has always been
tilted heavily in favor of plaintiffs — it is, after all, the source of the
common law that our Supreme Court rejected in Sullivan. The British press
has labored under this burden for centuries and it has plainly affected its
ability to report the news aggressively. While this state of affairs was
surely regrettable, its impact was rarely felt outside the British press
itself. By the end of the 20th century, however, global publishing,
including the advent of the Internet, changed all that. (See Richard Winfield, “British libel laws: cutting off crucial

Suddenly, American publishers found themselves in the dock in London courts
to answer for publications about plaintiffs the world over. Russian oligarchs,
Texas tycoons, and Saudi trading companies all became so-called “libel
tourists,” bringing their defamation cases against American publications in the
U.K. and calling on the protections of that nation’s laws rather than taking
their grievances before the courts of the United States. The spotlight that
“libel tourism” focused on the disparities between the two legal systems
appeared, in turn, to embolden the British press and public to question the
ongoing efficacy of their own laws. Much as in the United States in 1964, it
became increasingly clear that something had to be done.

And, now, something has been done. The House of Lords first entered the fray
in 2001 in Reynolds v. Times Newspapers. In that case, the Lords took the
first step toward providing the press (both domestic and foreign) with
meaningful legal protection against libel judgments for reporting about matters
of public concern. Specifically, it created what has become known as the
Reynolds privilege,” which is designed to protect the publishers of
defamatory falsehood so long as the subject of their reporting is a matter of
“public interest” and the reporting was undertaken in a “responsible” manner. To
guide lower courts in determining whether the reporting in a given case
qualified as “responsible journalism,” the Lords articulated a list of 10
factors that ought to be consulted by trial and appellate judges in making that
determination — e.g., did the press seek out the plaintiff prior to publication,
did it endeavor to confirm the accuracy of the information it reported in a
responsible manner, etc.

As well-intentioned as the Reynolds decision was, it did not have a
material impact on the way in which the British courts resolved libel cases.
Indeed, in some ways, it managed to make things worse. Trial judges construed
the Reynolds factors as 10 “hurdles” to be scaled by a news-media
defendant — if they were not negotiated successfully, the journalism was deemed
to be “irresponsible.” Libel judgments against the press — foreign and domestic
— continued to mount largely unabated. And, although damage awards in the U.K.
do not rise to the level of those in the United States, in Britain the winner
routinely also recovers his “costs,” including attorneys’ fees, which are often
counted in the hundreds of thousands of pounds.

The Jameel case
One such case was Jameel v. Wall Street
Journal Europe.
In early 2002, smack in the wake of 9/11 itself, the
European edition of The Wall Street Journal published an article
reporting that the Saudi government was in fact cooperating with the United
States in tracking the funds flowing to al-Qaida and other terrorist
organizations. Specifically, the Journal reported that the Saudi central bank
was monitoring, at the request of the U.S., bank accounts associated with some
of the country’s most prominent businesses, including the trading company
operated by the individual plaintiff, Mohammed Abdul Latif Jameel.

Jameel and the trading company sued, alleging that the article falsely
implied, inter alia, that there were reasonable grounds to suspect their
involvement in terrorist funding. The Journal did not seek to “justify”
the alleged defamatory meaning — i.e., the newspaper did not plead and attempt
to prove its truth, as required at common law. Rather, the Journal
defended itself on the grounds of Reynolds privilege.

After a three-week trial, a jury found for both plaintiffs and awarded them a
total of 40,000 pounds plus costs. As is the practice in the U.K., the verdict
was reached after the trial judge put a number of specific questions to the jury
relating to the efficacy of the Reynolds privilege — specifically,
whether the reporter had in fact received the information published from
multiple sources, as he claimed, and whether publication should have been
delayed to afford the plaintiffs additional time to respond to the allegations
prior to publication. (Although the Journal did endeavor to contact the
plaintiffs the day before the article appeared, the trading company refused both
to comment and to make Jameel available for an interview on such short

The jury, based on the instructions provided by the trial judge, answered the
first inquiry in the negative (on the theory that, since the newspaper had not
sought to “justify” its publication, it was logically impossible for multiple
knowledgeable sources to have confirmed a conceded falsehood) and the second in
the affirmative (on the theory that no harm would have been done by delaying
publication for a short period to afford the plaintiffs an opportunity to
formulate a response to the allegations).

After the Court of Appeals affirmed, the House of Lords took up the matter
and, on Oct. 11, 2006, delivered what must, together with Reynolds, be
considered the U.K. analogue to New York Times v. Sullivan.

In Jameel v. Wall Street Journal Europe the House of Lords not only
reversed the judgment against the Journal, it ordered that judgment be
rendered in the newspaper’s favor. It did so in ringing terms reminiscent of our
Supreme Court’s pronouncements in Sullivan. In the “lead judgment” (in the House
of Lords, all the jurists participating in a case typically write something),
Lord Hoffmann acknowledged that, although Reynolds had been designed to
grant “greater freedom for the press to publish stories of genuine public
interest,” in fact it had “had little impact on the way the law is applied in
the first instance,” rendering it “necessary to restate the principles.”

And so, the Lords proceeded to do just that, laying down a number of
subsidiary rules to govern application of the Reynolds privilege:

  • Matter of public interest. In determining whether the subject matter
    of  a particular publication constitutes “a matter of public interest,”
    courts must consider the article “as a whole” and not focus in isolation on the
    alleged defamatory statements — i.e., it is not “necessary to find a separate
    public-interest justification for each item of information within the

  • Role of judges. Although the question of whether the publication
    concerned a matter of public interest is to be decided by the court as a matter
    of law, and does not extend to everything that may be of interest to the public
    (including, especially it appears, the sex lives of “footballers”), the “fact
    that the judge, with the advantage of leisure and hindsight, might have made a
    different editorial decision, should not destroy the defence.”

  • Responsible journalism. In determining whether the defendant had
    engaged in “responsible journalism,” the “question in each case is whether the
    defendant behaved fairly and responsibly in gathering and publishing the
    information,” and the 10 factors articulated in Reynolds “are not tests
    which the publication has to pass,” but rather “must be applied in a practical
    and flexible manner” with due “regard to practical realities.”

  • Failure to prove truth. In applying the privilege, the fact that the
    defendant has chosen not to attempt to prove the truth of the publication, or is
    unable to do so, is irrelevant.

  • Secrecy. The fact that the government (in this case the U.S. and
    Saudi governments) has a legitimate interest in keeping information secret, even
    in the cause of enhancing national security (in this case the war on terror),
    does not affect the calculus of whether the publication at issue addresses a
    matter of “public interest” — “it is no part of the duty of the press to
    cooperate with any government, let alone foreign governments, whether friendly
    or not, in order to keep from the public information of public

At bottom, as Baroness Hale summarized the thrust of the Lords’ decision by
reference to the Journal article at issue, “[w]e need more such serious
journalism in this country and our defamation law should encourage rather than
discourage it.”

Cause for dancing in the streets?
Sweet music indeed, with a sound
reminiscent of the Sullivan Court’s tribute to the primacy of
“uninhibited, robust and wide-open debate.” And, although the lyrics are
decidedly different than those in Sullivan (instead of “public figures” and
“actual malice,” there is “public interest” and “responsible journalism”), it is
music that will, to be sure, resonate both with potential libel claimants and
lower courts in the United Kingdom. It may well, like Sullivan before it,
serve to stem the deluge of claims and verdicts that are presently retarding the
free flow of information in Britain.

For now, one is reminded of what Alexander Meiklejohn told Harry Kalven after
reading the Sullivan opinion: “It is,” he said, “an occasion for dancing
in the streets.”

Lee Levine is a partner in the Levine Sullivan Koch & Schulz firm in
Washington, D.C. He has represented media clients in libel, invasion of privacy,
copyright and related First Amendment cases for more than 25 years. In the
United States Supreme Court, he argued
Communications, Inc. v. Connaughton
(1989) on behalf of the newspaper
defendant and
v. Vopper
(2001) on behalf of the media defendants. He is the author,
along with Professors C. Thomas Dienes and Robert Lind, of
Newsgathering and
the Law (Lexis Law Publishing, 3d ed., 2005).